No. 80-3-478, Appeal from the Order of the Superior Court, dated December 28, 1979, at Special Transfer Docket 1979, No. 302, Vacating Defendant's Judgment of Sentence as of No. 2102, August Session, 1977 of the Court of Common Pleas of Philadelphia County, and Remanding the Case for a hearing to determine Trial Counsel's Effectiveness.
Steven H. Goldblatt, Deputy Dist. Atty., Gaele Barthold, Asst. Dist. Atty., Philadelphia, for appellant.
David L. Pollack, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion in which O'Brien, C. J., joined.
The instant appeal was brought by the Commonwealth of Pennsylvania from an order of the Superior Court, 273 Pa. Super. 477, 417 A.2d 748, which vacated the judgment of sentence imposed upon appellee David Morris following his conviction of voluntary manslaughter.*fn1 That Court, at No. 302 Special Transfer Docket, 1979, remanded the case to the trial court for an evidentiary hearing on appellee's allegation that trial counsel was ineffective for failing to request jury instructions on the crime of involuntary manslaughter.
Requested instructions on the offense of involuntary manslaughter should be given only in those homicide prosecutions "where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict." Commonwealth v. White, 490 Pa. 179, 185, 415 A.2d 399, 402 (1980) and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). In determining whether these requirements have been satisfied, the evidence is viewed in the light most favorable to the defendant. Commonwealth v. Moore, 463 Pa. 317, 321-22, 344 A.2d 850, 852 (1975);
merit to requesting instructions on that offense. It is thus necessary to inquire further into whether counsel had some reasonable basis designed to effectuate appellee's interests in agreeing not to proceed upon the information charging involuntary manslaughter and not requesting instructions on that crime.*fn3 See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). In applying this standard, the judgment of sentence will not be vacated if trial counsel's actions were within the realm of trial tactics or strategy. Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608, cert. denied 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973).
The decision of whether or not to request jury instructions on involuntary manslaughter is a matter of trial strategy. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). By excluding the crime of involuntary manslaughter from the jury's consideration in a homicide prosecution, its alternatives are confined to finding a malicious or intentional killing within the meaning of Sections 2502 and 2503 of the Crimes Code, or an acquittal. In the instant case, if the jury had accepted appellee's assertion that he did not intend to stab and kill Minor, even though rejecting his claims of self-defense, it should have returned a verdict of not guilty of the crimes on which it had been instructed. On the other hand, had instructions on involuntary manslaughter been requested and given, this possibility of outright acquittal could have been foreclosed. The decision to exclude the offense of involuntary manslaughter from the
jury's consideration was not, therefore, without a reasonable objective basis designed to effectuate appellee's interests, and the Superior Court erred in vacating the judgment of sentence and remanding the ...